FRIEDLANDER, J.
That morning, Katherine Shuffield was working as a teller at the Huntington Bank at 21st and Post Road in Indianapolis. There were three other employees present and one patron as Kendrick entered the bank armed with a Calico handgun. He wore a face mask, gloves, and dark clothing to avoid being identified. Kendrick ordered the patron to the floor. Then he attempted to open the gate to the teller area. When he could not open it, he jumped over Shuffield’s counter. As the obviously-pregnant Shuffield backed away, Kendrick pointed his gun and shot her in the abdomen. Shuffield fell to the floor screaming for someone to help her and her twin babies.
. . . .
On June 23, 2008, the State charged Kendrick with class A felony attempted murder, class A felony robbery, two counts of class C felony feticide, and one class A misdemeanor weapons charge. Kendrick’s five-day jury trial commenced on January 25, 2010. Among others, Little, Petty, and Stewart testified against Kendrick. The theory of the defense was that Kendrick had been set up and was not involved in the robbery. [Footnote omitted.] The jury ultimately found Kendrick guilty as charged. The trial court entered judgments of conviction accordingly, except it reduced the robbery conviction to a class B felony to avoid double jeopardy. At the sentencing hearing on February 12, 2010, the trial court sentenced Kendrick to consecutive sentences of thirty years for attempted murder, fourteen years for robbery, four years for each feticide conviction, and one year on the handgun conviction. In all, Kendrick received an aggregate sentence of fifty-three years in prison. He now appeals. Additional facts will be provided below as necessary.
Kendrick initially argues that his feticide convictions must be vacated pursuant to article 1, section 14 of the Indiana Constitution. Specifically, he contends that the State used the same evidence to establish both counts of feticide and the attempted murder count in violation of our state’s prohibition against double jeopardy.
Our Supreme Court has established a two-part test for analyzing state double jeopardy claims. According to that test, multiple offenses are the same offense in violation of article 1, section 14, “if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Kendrick raises his claim under the actual evidence test. Thus, we must determine whether there is a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of one offense may also have been used to establish all of the essential elements of the other offense. See Davis v. State, 770 N.E.2d 319 (Ind. 2002); Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002) (“the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense”) (emphasis in original).
In the instant case, we find that the evidentiary facts used to establish the feticide convictions established all of the elements of the attempted murder conviction. Both convictions resulted from one act, the shooting of Shuffield in the stomach. To establish the feticide convictions, the State correctly observes that it was required to present additional evidence regarding Shuffield’s pregnancy and the resulting termination thereof. See I.C. § 35-42-1-6 (“[a] person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide”). No additional evidence, however, was required or presented to establish the attempted murder.7 [7The State does not argue that each conviction involved a separate victim. To be sure, in a subsequent argument in its appellate brief, the State makes clear that the victim of feticide is the mother (the one whose pregnancy has been terminated). Had Kendrick been charged and convicted of the murder of viable fetuses, I.C. § 35-42-1-1(4), we would clearly be dealing with separate victims.] Thus, there is more than a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of feticide may also have been used to establish all of the essential elements of attempted murder.8 [8In 2009, our legislature resolved double jeopardy problems like the one presented in this case by adding Ind. Code Ann. § 35-50-2-16 (West, Westlaw through 2011 Pub. Laws approved & effective through 2/24/2011). This statute allows the State to seek an additional fixed term of imprisonment of between six and twenty years when the State can show beyond a reasonable doubt that the defendant, while committing or attempting to commit murder, caused the termination of a human pregnancy.]
Having vacated Kendrick’s feticide convictions, we remand for resentencing on the remaining counts. United States v. Rivera, 327 F.3d 612, 614 (7th Cir. 2003) (“where a defendant is sentenced on multiple counts, he has ‘no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal’”) (quoting United States v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987)), cert. denied. See also Owens v. State, 897 N.E.2d 537 (Ind. Ct. App. 2008). In particular, the trial court may now consider the victim’s pregnancy and the termination thereof in crafting Kendrick’s sentence for attempted murder.9 [9At the sentencing hearing, Kendrick specifically argued that the court could not aggravate his sentence for attempted murder based upon the loss of Shuffield’s babies because “that’s contained in the feticide charges.” Transcript at 1469. The trial court is no longer so constrained.] On remand, however, the court may not impose an aggregate sentence in excess of fifty-three years, as that would raise a presumption of vindictiveness. See United States v. Rivera, 327 F.3d 612.
MAY, J., and MATHIAS, J., concur.